A fee-dodging retiree forces a national forest to rethink access charges

Retired geophysicist Jim Smith stands next to a Red Rock Pass dispenser at a trailhead just outside Sedona, Arizona.

Daniel Kraker

Soft-spoken, bespectacled Jim Smith makes an unlikely activist. The former Mobil Oil geophysicist retired to Sedona, Ariz., about 10 years ago, drawn by the spectacular red-rock scenery. In November 2009, Smith drove five miles of rough road to the Vultee Arch trailhead and backpacked in for a night. When he returned, he found the Forest Service had ticketed him for failing to buy a Red Rock Pass.

Rather than simply mailing a check, Smith did some research. Then he challenged the citation in federal court.

Last September, he won. U.S. Magistrate Judge Mark Aspey ruled that the Coconino National Forest could not charge recreation fees at undeveloped trailheads or other sites that did not offer certain amenities, like toilets or picnic tables. The Coconino has since stopped charging fees at more remote trailheads. It's also held two public meetings, and in June released two alternative fee scenarios. Coincidentally, the Forest Service announced on Feb. 25 that it would conduct a nationwide internal review of its recreation fee areas.

Smith says he challenged his ticket on behalf of those who "have a hard time affording fees." Kitty Benzar, president of the Western Slope No Fee Coalition, is more effusive. "Jim Smith," she says, "is a hero to a lot of people."

The Forest Service and Bureau of Land Management were first authorized to charge access fees through the 1996 Recreational Fee Demonstration Program. Local agencies needed money to reduce a huge maintenance backlog; at least 80 percent of the fees would be used on the land where they were collected. But many people resented the program, arguing that public lands should remain, well, public. Cities, counties and state legislatures including Oregon's and Idaho's passed resolutions condemning it and complaining about charges for access to undeveloped areas.

The Federal Lands Recreation Enhancement Act (FLREA), passed in 2004, repealed the Fee Demo program and restricted fees to sites that provide amenities. But the Forest Service retained many of the same fee programs it had created under Fee Demo -- even in areas lacking services. The agency came up with a new designation called "High Impact Recreation Areas," or HIRAs, which lump together primitive sites with nearby sites that do have amenities, creating chunks of land where fees could be collected. There are 95 HIRAs across the country, mostly in the West. They are often huge: Sedona's Red Rock fee area, for example, encompasses 160,000 acres.

Since FLREA also allows federal agencies to charge fees for "specialized recreation uses ... such as group activities" and "recreation events," the BLM took a different approach, requiring paid permits at roughly 20 primitive but sensitive sites throughout the West, like Utah's Cedar Mesa and Arizona's Paria Canyon. Benzar calls this the "black hole" in the law.

No-fee activists say the Smith decision has re-energized them. Matt Kenna, an attorney with the Western States Legal Foundation who represents plaintiffs challenging fees at Mount Lemmon outside Tucson and Mount Evans west of Denver, says it's helped in both cases. District court rulings aren't binding precedents, but Kenna calls it "a fresh, well-reasoned decision."

Still, it's unclear how the decision will affect the Forest Service at large. The head of the agency, Tom Tidwell, says system-wide reviews were already being planned, but acknowledges that Smith's case "was another indicator that we need to take a look" at the fee areas. The agency completed the reviews in late May, but says it's too early to reveal what recommendations might result.

Given flat recreation budgets and skyrocketing visitation, some say access fees are likely here to stay. Nationwide, the Forest Service collects over $60 million annually in fees, about 20 percent of its total "Recreation, Heritage and Wilderness" budget. The money is funneled back into maintenance, safety, visitor education and more. In Sedona, Red Rock Pass revenue pays for managing the nation's largest national forest volunteer team, which does everything from pick up trash to help maintain trails. And the fee program is fairly lean: No more than 15 percent is used for administrative and other overhead costs.

The local program generated just over $1 million in 2010. That's a lot of money; the Red Rock District received only about $400,000 in federal recreation funds that same year. The fees are critical for protecting a fragile ecosystem that hosts a million and a half visitors every year, says Coconino Recreation Staff Officer Jennifer Burns. If there aren't established trails, hikers create their own by tramping over sensitive soils, she says. "The Red Rock Pass in this day and age is a necessity. I would hate to see it go away."

More from Recreation

This story's writer refers to "skyrocketing visitation," but provides no foundation for this statement. In Central Oregon, official Forest Service data indicate that Deschutes National Forest visitation decreased 39% from 2002 to 2008. This likely is due in part to a change in methodology, but the forest's recreation program manager agrees that visitation has decreased -- despite a 32% growth in Deschutes County's population. Of course, visitation has been increasing at some sites, but it's time to end the damaging myth that recreation on public lands is ever-increasing. Fees may or may not be a good idea, but they (and other policies) should not be based on myths. I encourage HCN writers to provide supporting figures when making such assertions.

Steve Snyder

Jul 06, 2011 04:04 PM

When do loggers get charged "high impact fees"? Or ranchers?

Dave Kangas

Jul 07, 2011 07:20 AM

If we want developed trailheads, campsites, hiking trails fees are needed to pay for them. Some areas receive a lot heavier use than others and need higher fees to cover the increased maintenance. If you are happy with undeveloped access and appreciate people parking anywhere, camping anywhere, urinating anywhere they please, then fees don't belong, but also don't complain about the toilet paper, feces and unauthorized ATV trails. As our populations increases, so will use of our public lands, some more than others, hence the need to control the use and access. They are called "user fees" and are appropriate, since people that don't use them shouldn't pay higher taxes to support them. You could always just stay home and enjoy your city park.

Steve Snyder

Jul 07, 2011 11:48 AM

Actually, if it's in terms of hikers, Dave, and USFS and BLM lands are like NPS lands, then that use of public lands is going DOWN, as Kreg notes just above you. Two, as the story notes, USFS is trying to charge fees on trails with no amenities. The user fees aren't appropriate, especially when ranchers, loggers (and, for that matter, maybe ATV drivers too) aren't being charged the same.

Nice try.

Robb Cadwell

Jul 07, 2011 01:29 PM

Exactly which part of the word "public" is so hard to understand?

Wether or not the site or area is improved or not is irrelevant. Public roads, public schools, public safety (police), public libraries. What's this place coming to when there are fees to use public lands that have been saved for us and future generations to enjoy. Grown up responsible people pay taxes, that's how we fund things. Can't believe this even needs saying.

Jesse Tigner

Jul 07, 2011 06:01 PM

But ranchers and loggers do pay fees. Producers are levied a monthly per cow (or cow/calf pair) to graze in both USFS and BLM lands. And timber companies must bid on timber sales on FS lands (as do mining and oil/gas companies on BLM lands).

Some folks may not think those fees are high enough, but they are in place and they are paid. And by keeping those fees lower than those of the private marketplace, the savings are ultimately passed on to us the consumer. And, viola! the utilitarian charters of these agencies that mandate the provision of timber (USFS) and grazing lands (BLM) for peoples' good are fulfilled.

Nice Try.

Steve Snyder

Jul 07, 2011 11:39 PM

Jesse ... got proof those "savings" are being passed on to "us the consumer"? I don't see it. If the fees were market-based ranchers wouldn't graze so many cows on federal land, we'd have less erosion and other issues, and we'd really save money. Similar arguments apply to logging.

That said, where do I sign up to get my "savings"? Hey, Mr. President, if you tax me less, the government will have "savings"!

Ooops ... I think this sounds like supply-side economics, Western pseudo-libertarian style.

Jesse Tigner

Jul 08, 2011 11:01 AM

Sorry, I’m not quite sure I follow your response. Maybe I’m dense. It’s not supply side economics I’m taking about at all. The public land agencies are not keeping fees artificially low in order to manipulate markets into chugging out huge amounts of supply in order to spur economic growth or ultimately increase revenue from an increased supply of taxable commodities. Like any other commodity or product sold, the cost of timber or meat is determined by the cost of doing business and the profit incurred. And those costs / profits are driven both by supply and demand.You’re absolutely right, if fees were market based less cattle would be grazed on public land. But then so would the prices be higher. Ranchers and loggers are not in the business of eating profits for the benefits of consumers, nor should they be. They are providing a service and deserve to be paid for it. But therein lies one of the many goals of these federal land agencies: reduce some of the cost of doing business so that commodity producers can still achieve satisfactory profits without having to pass that full cost onto us the consumer. If anything, the lower fees levied by those land agencies are functioning as a subsidies, and subsidies are in most cases (and certainly this one) antithesis to supply-side economics.

It’s not as if this is secret stuff requiring investigative journalism. Rather it’s all clearly mandated policy for the US FS AND BLM, and can be plainly found on the agencies’ websites. Don’t believe me?, check it out for yourself. Both agencies have slick websites. These agencies are in the business of supporting rural economies by relieving some of the burden of doing business there. And that ultimately helps lower the costs for consumers of meat and wood (which are of course both produced largely in rural areas). Don’t believe me there?, just go shopping. There are any number of “green certified” timber or “predator friendly” / organic cattle options available in the market place and you’re free to purchase them. But, these products are typically more expense for the consumer because they are also more expensive to produce (and that increased cost is passed onto us for the sake of producers making profit).

I’m certainly not going to disagree with you about the use of poor timber and ranching practices on some public lands. I just don’t see the solution as increasing fees, especially for small producers. Industrial outfits, have at ‘er. On the other side of the coin, non-motorized recreation create a lot of impacts too. Bringing us back the point of this story and other recent ones like it, I think lots of folks don’t want to have to pay additional fees to use their public lands. I’m certainly one of them. I also happen to think it’s a bit hypocritical to expect only some users to pay fees.

Remember, it’s my West, too. And the West I admire is partly made up of nice vistas and open space, but it’s also made up of ranching and logging.

Robb Cadwell

Jul 09, 2011 10:10 AM

I thought the reason we have low fees for ranchers and loggers is because they are a use we want, similar to hiking, or mountain biking. It's a productive use of the land. If we didn't want people to log, ranch, and mine we wouldn't let them, and indeed some places like national parks we don't.

Steve Snyder

Jul 10, 2011 01:38 AM

Robb: Simplistic answer. It's not a question of "not wanting them" to log or ranch, it's simply wanting them to pay market value.

Jesse: Before it was your/the loggers/the ranchers west, or mine, or anybody else's, not that American Indians are perfect, but we weren't running livestock beyond carrying capacity, etc.

And, you ARE missing something. For ranchers, compared to equivalent fees on similar private land, USFS/BLM are charging WAY, WAY, WAY below market fees. I don't apologize for the caps. It's a subsidy, pure and simple; because it encourages overuse, it's NOT ultimately that productive, etc. Period.

Larry Audsley

Jul 12, 2011 03:18 PM

As a heavy recreatinal user of our national forests and BLM lands, I support user fees for recreation. That even includes a nominal fee just for entry. Use of developed or other maintenance-intensive sites can justify a higher fee. It's only fair that those of us who play should pay, and those who don't aren't asked to pay for something they don't use.

I also feel it's time we all got on the same page regarding trends among public lands users. It's my understanding that outdoor recreation overall has declined both in real terms and on a per capita basis. I also suspect that America's outdoor recreationists may be an aging population, and I don't mean just for hunting and fishing. Maybe someone would like to dig that out. US Fish & Wildlife Service's statistical reports might be a place to start.

Pamela Bond

Jul 13, 2011 12:54 PM

I do not think there should be a users fee for public USFS and BLM lands and here is why - ~17% of my federal tax dollars go towards national defense while only ~1% goes towards natural resources and the environment. I don't really get to decide where my tax dollars go but if I did, I would definitely be being paying a lot more towards the things that concern me such as natural resources and education and a lot less towards a war I don't believe in. Moral of the story - we all have to pay our share even for things we don't believe in or use.

Larry Audsley

Jul 13, 2011 01:30 PM

Pamela, you are dead right that we have to pay our share even for things we don't believe in or use. However...

Some government services cannot be financed by user fees because it's impossible to determine who is benefiting and by how much. National defense is a good example. Some will argue that the rich should pay more for national defense because they have the most to lose. Others will argue the potential loss of life and liberty that would likely follow being invaded and conquered by a foreign power would be felt equally by all Americans, and that even the loss of access to overseas markets would damage everyone's standard of living in the long run, which means everyone should contribute to national defense. As it is, this country has a progressive income tax that results in the wealthier class paying the majority of taxes at the federal level. In the lexicon of tax policy, people who benefit from government expenditure but don't pay are called "free riders."

Public lands is a different matter. When the benefits of a good or service can be linked to a user, and when users can be excluded if they don't pay, a user fee is the preferred method of financing.

But regardless of how we feel about any particular service, we will pay what our elected representatives believe we should pay for this service or that, and each of us has to accept that the national consumption basket won't match our own exactly. Such is life.

To the dismay of many of my Republican friends, I happen to support the graduated income tax as both fair and equitable. But I also support user fees in situations where circumstances allow, and entry to public lands has the required characteristics to allow for user fees. Those who go there reap special benefits, and people who refuse to pay can be excluded.

Of course, it's also possible to subsidize user fees if society (through its elected representatives) decides that public lands generate broader benefits to more than just those who recreate on them. For example, by providing timber, minerals, livestock products and water. Therefore, it is reasonable that public lands should be financed by a combination of taxes everyone pays and user fees for those who also want to recreate there.

Pamela Bond

Jul 13, 2011 02:01 PM

Larry - I see what you are saying but I am going to play the devil's advocate here just for fun. So lets say user fees are instilled, 1) am I - a hiker - going to pay the same fee as an OHV rider who will no doubt cause more damage and go farther than I ever could and 2)these agencies are going to have to enforce that fees are paid some how = hiring more employees, which isn't necessarily a bad thing these days; where does the money come from to pay said employees? Enforcement (at least in my neck of the woods) is already stretched pretty thin.

Larry Audsley

Jul 13, 2011 02:17 PM

There's no reason why all users should pay the same fees. If higher impacts or enforcement needs can be attributed to OHV use, then OVH users should be charged higher fees.

Here in Arizona OHV fees are paid to the state. It would not seem unreasonable for federal land agencies to demand either a share of the receipts or else that the state provide enforcement. Currently they are doing the latter, but enforcement isn't adequate as we have a lot of land and not many officers (Game & Fish, primarily, with occasional help fromt he sheriff's dept.)

It can get complicated when you start making fine distinctions. I live in Tucson, and as the story mentioned the forest service charges a fee to go up to Mt. Lemmon. There's no fee if you go to a private business, but once you step out of the car on FS land you owe them a use fee. When this was new, I purchased a $20 annual pass and parked at a lake to go fishing. When I returned to my truck, I found a ticket on my windshield. Apparently the $20 pass didn't cover parking in a parking lot at a campground next to the lake, and they expected me to pay another six dollars to the fee box for parking there.

I would see no problem with charging separate fees for OHV use on federal lands. I'm sure a few people don't use their OHVs on federal lands and would only need to pay the state fee. But the important thing is that all government bodies dealing in OHV licensing and fees should make it very clear to purchasers what each permit does and does not pay for. It's not fun to get a surprise after you think you've done the right thing.

Shana Payne

Aug 09, 2011 09:29 AM

This seems to be a debate I have heard for years. Charge a fee and you might keep those with lower incomes from enjoying our public lands, as well as the mental and physical health benefits from those places. On the other hand, our parks and recreation lands are severly underfunded and the more people that use them, the more damage they cause to those environments. Some examples: walking off trail through sensitive areas, increased noise that may affect native animal populations, pollution of water sources, littering, and damage to archeological sites. The list goes on and on. I remember hiking in Horseshoe Canyon in UT (Canyonlands) and overhearing two rangers complaining about a backpacker who decided to, um, do his business right near the ONLY water source in the area - effectively polluting it for other hikers, as well as animals, who depend on it. Who pays for this? We need people to see these places to appreciate them and protect them, but we also need to educate them as well. That person leaning against a historic ruin in New Mexico or touching a petroglyph in Arizona often doesn't realize they may be damaging that site and possibly destroying the future experience for their children and grandchildren. No amount of user fees is going to fix the problem if the land management agencies don't use them properly. I am all for reasonable (i.e. accessible) fees to use these areas, but I would like to know the money is being used to truly protect these areas, not just to pay for some bathrooms 15 miles away.